Bhartiya Nyaya Sanhita (BNS): Significance and Concerns | Indian Polity for UPSC CSE PDF Download

The Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagrik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) replace the Indian Penal Code (IPC) of 1860, the Criminal Procedure Code (CrPC) of 1973, and the Indian Evidence Act of 1872, respectively. These three Bills were passed by Parliament last December. This article will examine their importance and the concerns associated with these new laws.

Additions in the Bharatiya Nyaya Sanhita (BNS)

1. Mob Lynching (Clause 103): Offences related to mob lynching and hate-crime murders are now codified. If a mob of five or more people commits murder based on factors like race, caste, community, language, place of birth, or personal belief, this provision applies. Punishments range from life imprisonment to the death penalty.

2. Organised Crime (Clause 111(1)): Organised crime and terrorism have been incorporated into ordinary criminal law for the first time. Previously, terrorism was handled under the Unlawful Activities Prevention Act (UAPA) and organised crime under state laws like the Maharashtra Control of Organised Crime Act (MCOCA).

3. Deceitful Promise to Marry (Clause 69): Making a deceitful promise to marry is now a crime. It covers situations where the promise of marriage is made using false pretenses, such as offering employment, promotion, or concealing one's identity. Offenders face imprisonment of up to 10 years and a fine.

4. Attempt to Suicide: The act of attempting suicide with the intention to compel or restrain a public servant from performing their duty is now criminalised. This provision aims to address self-immolations and hunger strikes often used in protests.

5. Snatching (Clause 304(1)): Snatching has been made a distinct crime from theft. Both snatching and theft carry a punishment of up to three years in prison.

These new provisions in the BNS are intended to address emerging social challenges and clarify legal interpretations for specific crimes, enhancing the framework of criminal law.

Major Deletions in the Bharatiya Nyaya Sanhita (BNS)

1. Unnatural Sexual Offences: Section 377 of the IPC, which criminalised homosexuality and other 'unnatural' sexual activities, has been repealed under the BNS.

2. Adultery: The offence of adultery, previously deemed unconstitutional by the Supreme Court in 2018, has been removed from the BNS.

3. Thugs: Section 310 of the IPC, which criminalised habitual association with robbery or child-stealing and labelled individuals as 'thugs', has been eliminated from the BNS. This provision was criticized for perpetuating colonial notions of criminality associated with certain tribes.

Changes in the Bharatiya Nyaya Sanhita (BNS)

1. Gender Neutrality: The BNS introduces gender neutrality in laws previously focused on women. Offences such as outraging the modesty of women (formerly under Section 354A of the IPC) and voyeurism (formerly Section 354C) are now gender-neutral, allowing for both men and women to be accused.

2. Fake News: The BNS includes a new provision targeting hate speech and criminalising the dissemination of false and misleading information.

3. Sedition: The offence of sedition is renamed from ‘rajdroh’ to ‘deshdroh’ with a broader definition. It now includes:

   • Financially aiding subversive activities
   • Encouraging separatist feelings

4. Community Service: For the first time, community service is introduced as a form of punishment for petty offences in the BNS.

Major Changes in the Bharatiya Nagrik Suraksha Sanhita (BNSS)

1. Expansion of Detention: The BNSS extends the detention period in police custody from the previous 15-day limit to up to 90 days.

2. Victim’s Opportunity to be Heard: Victims are now given an opportunity to be heard in cases with a punishment of seven years or more before the government can withdraw the case.

3. Trials in Absentia: The BNSS allows for trials and convictions of accused persons in their absence, treating it as if the accused was present and waived their right to a fair trial.

4. Removal of Statutory Bail Provisions: The BNSS eliminates statutory bail provisions for accused persons with multiple offences. Previously, statutory bail could be granted if an accused had served half of the maximum sentence.

Significance of the New Sanhitas

1. Decolonisation of Laws: These new laws represent a move towards Indian-made legal frameworks, shifting away from colonial-era laws.

2. Revamping of Criminal Justice System: The laws reflect modern dynamics and aspirations, incorporating recommendations from various committees aimed at overhauling the criminal justice system.

3. Incorporation of SC Judgments: The new laws include significant Supreme Court judgments, such as the decriminalisation of homosexuality, aligning with recent judicial pronouncements.

4. Gender Neutrality: The introduction of gender neutrality in legal provisions updates laws to reflect current societal norms and values.

5. Community Service as an Alternate Punishment: This measure aims to reduce prison overcrowding by offering community service as a punishment for minor offences.

6. Acknowledgement of Hate Crimes: By including provisions for mob-lynching and hate crimes, the laws address these contemporary issues and emphasize speedy trials and video-conferencing.

Concerns with the New Sanhitas

1. Retention of Colonial Legacy: Critics argue that the new laws still retain colonial-era practices, such as long-term imprisonments and the death penalty, and vague definitions for state offences and defamation.

2. Ambiguity in Definitions: The BNS includes provisions for offences like secession and subversive activities without clear definitions, potentially leading to misuse.

3. Undefined Community Service: The BNS lacks a clear definition of community service, leaving it to judicial discretion and creating potential ambiguity.

4. Cosmetic Changes in Sedition: Critics argue that the changes to the sedition law are superficial, merely renaming the offence rather than fundamentally altering its scope.

5. Lack of Transformational Changes: Despite some updates, much of the original language and content of the laws remain unchanged, according to critics.

6. Insufficient Legislative Scrutiny: The Bills were passed amid significant parliamentary disruptions, raising concerns about the thoroughness of their review.

7. Fear of State Misuse: The provision for trials in absentia could be misused to bypass the duty of locating accused individuals properly.

8. Inclusion of Terrorism in General Sanhita: Critics believe terrorism should be handled under special legislation rather than included in general criminal law.

9. Exclusion of Marital Rape: The BNS does not criminalise marital rape, retaining the existing legal stance on this issue.

Way Forward

1. Modernization and Clarity: Ensure laws are clear, concise, and understandable for legal professionals and the public.

2. Victim-Centric Approach: Strengthen provisions to protect victims’ rights, including better support systems and compensation.

3. Focus on Rehabilitation: Emphasize rehabilitative justice and alternative sentencing to reduce prison overcrowding and support offender reintegration.

4. Technology Integration: Incorporate technology to improve legal processes, investigations, and evidence collection.

5. Public Awareness and Education: Conduct awareness campaigns and educational programs to inform citizens about their rights and responsibilities.

6. Consultation and Stakeholder Involvement: Engage various stakeholders in the reform process to ensure inclusivity and diverse perspectives.

Reforming criminal laws requires collaboration, thoughtful deliberation, and a commitment to justice and fairness for all members of society.